No. 14-16864
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT _______________________
NAVAJO NATION,
Plaintiff-Appellant v.
DEPARTMENT OF THE INTERIOR, SALLY JEWELL, Secretary of the Interior, BUREAU OF RECLAMATION, and
BUREAU OF INDIAN AFFAIRS, Federal Defendants-Appellees
STATE OF ARIZONA, CENTRAL ARIZONA WATER CONSERVATION DISTRICT, ARIZONA POWER AUTHORITY, SALT RIVER PROJECT
AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, SALT RIVER VALLEY WATER USERS’ ASSOCIATION, IMPERIAL IRRIGATION DISTRICT,
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, COACHELLA VALLEY WATER DISTRICT, STATE OF NEVADA, COLORADO
RIVER COMMISSION OF NEVADA, SOUTHERN NEVADA WATER AUTHORITY and STATE OF COLORADO
Intervenors-Defendants-Appellees _________________________
ON APPEAL FROM THE FEDERAL DISTRICT COURT FOR THE
DISTRICT OF ARIZONA, HON. MURRAY B. SNOW _________________________
ANSWERING BRIEF FOR THE FEDERAL APPELLEES
__________________________
JOHN C. CRUDEN Assistant Attorney General
Of Counsel: ROBERT F. SNOW WILLIAM B. LAZARUS SCOTT BERGSTROM ELLEN J. DURKEE Office of the Solicitor EDWARD S. GELDERMANN U.S. Department of the Interior ELIZABETH ANN PETERSON Washington, D.C. 20240 Attorneys U.S. Department of Justice P.O. Box 7415
Washington, D.C. 20044 (202) 514-3888
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TABLE OF CONTENTS PAGE
STATEMENT OF JURISDICTION ........................................................... 1 INTRODUCTION ....................................................................................... 1 STATEMENT OF THE ISSUES ................................................................ 3 STATEMENT OF FACTS .......................................................................... 5 A. Historical Background ............................................................. 6
1. Background principles: the law of prior appropriation and Indian reserved water rights ........... 6
2. The Law of the River ...................................................... 9
a. The 1922 Compact ............................................... 10 b. The Boulder Canyon Project Act ......................... 11 c. The Arizona v. California decision and decree (Supreme Court No. 8, Original) ............. 13 d. The Colorado River Project Act and the Central Arizona Project ....................................... 16
B. The National Environmental Policy Act (“NEPA”) .............. 17 C. Factual Background ............................................................... 19 1. The Interim Surplus Water Guidelines ....................... 20 2. The Shortage Guidelines .............................................. 22 PROCEDURAL BACKGROUND ............................................................ 25
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SUMMARY OF ARGUMENT .................................................................. 27 STANDARD OF REVIEW ........................................................................ 30 ARGUMENT ............................................................................................. 31
I. The district court correctly dismissed Navajo’s NEPA claims .......................................................................... 32 A. Navajo has not alleged facts sufficient to
established standing to challenge alleged NEPA violations ............................................................ 33 1. Navajo has not alleged injury-in-fact
from alleged NEPA violations ............................. 34
a. Navajo does not allege concrete injury ...... 37 b. Navajo does not allege actual or imminent injury .......................................... 41 c. Navajo has not alleged injury “fairly traceable” to the implementation of the challenged guidelines ....................... 42
B. Navajo has not alleged injury-in-fact from the breach of a fiduciary duty ............................................. 44
C. Navajo’s claims are unripe ........................................... 47
II. Even if Navajo’s claims are justiciable, they should
be dismissed for lack of subject matter jurisdiction ............. 49 A. NEPA does not provide a cause of action for
Navajo’s claims .............................................................. 49
B. The district court properly dismissed Navajo’s breach-of-trust claim for lack of subject matter
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jurisdiction .................................................................... 52 1. This case is controlled by this Court’s
precedent in Gros Ventre Tribe v. United States53
2. The district court reasonably harmonized this Court’s conflicting precedents regarding the scope of the APA’s waiver of sovereign immunity55
III. The district court did not abuse its discretion in denying
Navajo’s post-judgment motion to amend its complaint ...... 57 A. The district court’s decision may be reversed
only for abuse of discretion ........................................... 57
B. The district court acted within its discretion in denying Navajo’s post-judgment motion ...................... 59
CONCLUSION ......................................................................................... 63 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases: Allen v. Wright, 468 U.S. 737 (1984) ....................................................................... 48 Arizona v. California, 344 U.S. 919 (1953) ....................................................................... 13 Arizona v. California, 373 U.S. 546 (1963) ............................................. 5, 9, 10, 11, 14, 15 Arizona v. California, 376 U.S. 340 (1964) .................................................................. 20-24 Arizona v. California, 439 U.S. 419 (1979) (per curiam) .................................................. 16 Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545 (1983) ................................................................... 8, 38 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 (9th Cir. 1989) ....................................................... 62 Ashcroft v. Iqbal, 556 U.S. 652 (2009) ......................................................................... 31 Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (en banc) (1988) ............................... 58 Bateman v. U.S. Postal Serv., 231 F.3d 1220 (9th Cir. 2000) ....................................................... 59 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................... 31 Bennett v. Spear,
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520 U.S. 154 (1997) ....................................................................... 48 Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009) ....................................................... 40 Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257 (1978) ....................................................................... 59 Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935) ........................................................................... 7 Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) ......................................................... 50 Cappaert v. United States, 426 U.S. 128 (1976) ......................................................................... 8 City of Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004) ....................................................... 33 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ....................................................... 31, 34, 40 Claypool v. O'Neill, 133 P. 349 (Or. 1913) ....................................................................... 7 Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976) ....................................................................... 38 Colorado v. New Mexico, 459 U.S. 176 (1982) ..................................................................... 6, 7 Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) .............................................................. 7 Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) ......................................................... 48
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DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................................. 31, 47 Desert Irrigation, Ltd. v. State, 944 P.2d 835 (Nev. 1997) ................................................................ 7 Dixon v. Wallowa Cnty., 336 F.3d 1013 (9th Cir. 2003) ....................................................... 61 FPC v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954) ......................................................................... 6 Flores-Figueroa v. United States, 556 U.S. 646 (2009) ....................................................................... 31 Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ....................................................................... 35 Gallo Cattle Co. v. USDA, 159 F.3d 1194 (9th Cir. 1998) ....................................................... 56 Gotelli v. Cardelli, 26 Nev. 382, 69 P. 8 (1902) ............................................................. 7 Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) ....................................... 44, 45, 52, 54 In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ....................................................... 61 Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) ........................................................... 18 Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994) ........................................................... 62 Jicarilla Apache Tribe v. United States, 131 U.S. 2313 (2011) ..................................................................... 44
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Kayes v. Pac. Lumber Co., 51 F.3d 1449 (9th Cir.) .................................................................. 58 Klapprott v. United States, 335 U.S. 601 (1949) ....................................................................... 58 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ........................................................................ 30 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc) .......................................... 18 Lexmark International v. Static Control, 134 S.Ct.1377 (2014) ................................................................. 49, 50 Liljeberg v. Health Servs. Acq. Corp., 486 U.S. 847 (1988) ........................................................................ 59 Los Angeles v. Lyons, 461 U.S. 95 (1983) .......................................................................... 34 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................... 32-34, 40, 41 Massachusetts v. EPA, 549 U.S. 497 (2011) ......................................................................... 38 Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010) ......................................................... 35 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) ....................................................................... 49 Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448 (S.D. Fla. 1997) ................................................. 40 Monsanto Co. v. Geertson Seed Farms,
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130 S. Ct. 2743 (2010) ................................................................... 32 Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998) ......................................................... 45 Native Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) .......................................................... 30 Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713 (9th Cir. 1993) .............................................................. 49 Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (9th Cir. 2006) .......................................................... 33 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ....................................................................... 48 Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) ......................................................... 46 Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831 (9th Cir. 2004) ......................................................... 30 Osborne v. Ohio, 495 U.S. 103 (1990) ....................................................................... 33 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ....................................................................... 30 Premo v. Martin, 19 F.3d 764 (9th Cir. 1997) ............................................................. 62 Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) ......................................................... 56 Raines v. Byrd, 521 U.S. 811 (1997) ....................................................................... 32
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Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ....................................................................... 18 Ry. Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ......................................................................... 32 Seminole Nation v. United States, 316 U.S. 286 (1942) ....................................................................... 44 Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) ....................................................... 44 Skokomish Indian Tribe v. FERC, 121 F.3d 1303 (9th Cir. 1997) ....................................................... 46 Shoshone Indian Tribe of the Wind River Reservation v. United States, 672 F.3d 1021 (Fed. Cir. 2012) ..................................................... 45 Stock W., Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) ....................................................... 30 Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014) ................................................. 34, 26 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ................................................................. 33, 34 Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014) ................................................................... 47 Texas v. United States, 523 U.S. 296 (1998) ....................................................................... 40 Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) .................................................. 32, 47 United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) ......................................................... 8
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United States v. Gen. Dynamics Corp., 19 F.3d 770 (2d Cir. 1994) ............................................................. 62 United States v. Mitchell (Mitchell II), 463 U.S. 206 (1983) ....................................................................... 44 United States v. Navajo Nation, 537 U.S. 488 (2003) ....................................................................... 45 United States v. Rosales, 19 F.3d 763 (9th Cir. 1994) ........................................................... 62 United States v. Wash., 98 F.3d 1159 (9th Cir. 1996) ......................................................... 59 United States v. Winans, 198 U.S. 371 (1905) ......................................................................... 8 Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) ........................................... 30, 41, 42 Whitmore v. Arkansas, 495 U.S. 149 (1990) ....................................................................... 34 Winter v. NRDC, Inc., 129 S. Ct. 365 (2008) ..................................................................... 17 Winters v. United States, 207 U.S. 564 (1908) ..................................................................... 4, 7 Wood v. Ryan, 759 F.3d 1117 (9th Cir. 2014) .......................................................... 60 Wyoming v. Colorado, 259 U.S. 419 (1922) ....................................................................... 10
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STATUTES: Administrative Procedure Act 5 U.S.C. § 702 .............................................................. 52, 53, 54, 55 5 U.S.C. § 704 .................................................................... 52, 53, 55 5 U.S.C. § 706(2)(A)-(C) .................................................................. 25 Boulder Project Act 43 U.S.C. § 617 et seq ..................................................................... 11 Colorado River Project Act Pub. L. No. 90-537, 82 Stat. 885, 43 U.S.C. § 1501et seq ....................... 16 43 U.S.C. § 1521 ............................................................................. 16 43 U.S.C. § 1552 .............................................................................. 19 43 U.S.C. § 1552(b) ................................................................... 16, 17 National Environmental Policy Act 42 U.S.C. § 4331et seq ..................................................................... 17 42 U.S.C. § 4331(b) ......................................................................... 17 42 U.S.C. § 4332 ............................................................................. 17 The McCarran Amendment 43 U.S.C. § 666 ............................................................................... 38 42 Stat. 971 (1921) .................................................................................... 10 28 U.S.C. § 1292(a)(1) ................................................................................ 1 28 U.S.C. § 1331......................................................................................... 1 28 U.S.C. § 1362.......................................................................................... 1 RULES and REGULATIONS: 36 C.F.R. § 218.2 ...................................................................................... 19 40 C.F.R. § 1500.1(c) ................................................................................ 18 40 C.F.R. § 1505.2 .................................................................................... 19
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40 C.F.R. § 1502.14 .................................................................................. 18 40 C.F.R. § 1506.1 .................................................................................... 19 43 C.F.R. pt. 414 ...................................................................................... 25 Fed. R. Civ. P. 12(b)(6) ..................................................................... 26, 30 Fed. R. Civ. P. 12(h)(3) ........................................................................... 30 Fed. R. Civ. P. 15(a) .................................................................................. 61 Fed. R. Civ. P. 15(a)(2) ........................................................................... 57 Fed. R. Civ. P. 59(e) ............................................................................. 59-61 Fed. R. Civ. P. 60(b)(6) ..................................................... 26, 29, 57-60, 62 Fed. R. Civ. P. 60(b)(6)(1)-(5) ................................................................... 59 LEGISLATIVE HISTORY: U.S. Const. art. III, § 2. ............................................................................ 29 MISCELLANEOUS: 1 R. Clark, Waters and Water Rights (1967) ............................................ 6 W. Hutchins, Selected Problems in the Law of Water Rights in the West (U.S. Dept. of Agriculture, Misc. Pub. No. 418) (1942) .................... 6 1 W. Hutchins, Water Rights Laws in the Nineteen Western States (U.S. Dept. of A Charles Alan Wright & Arthur Miller, 6 Federal Practice and Procedure § 1489 (1990) ............................................................................................. 62
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STATEMENT OF JURISDICTION
Plaintiff Navajo Nation (“Navajo”) asserted jurisdiction pursuant
to 28 U.S.C. § 1331 and 1362. On July 22, 2014, the district court
entered an order dismissing the complaint without prejudice for lack of
subject matter jurisdiction. On October 1, 2014, the district court denied
a motion for reconsideration. Appellants filed their notice of appeal on
September 19, 2014, and an amended notice of appeal on October 10,
2014. This Court has jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1292(a)(1).
INTRODUCTION
In this case Navajo challenges the Secretary of the Interior’s
(“Secretary”) compliance with the Administrative Procedure Act (“APA”)
and the procedural requirements of the National Environmental Policy
Act (“NEPA”) in taking a series of federal agency actions to implement
the legal regime that governs the allocation and distribution of the
waters of the Colorado River (“River”) in the southwestern United
States. The River, which provides a significant share of the water
available for use in seven western states and parts of Mexico, is
governed by a complex regime (commonly referred to as the “Law of the
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River”) under which the United States is responsible for allocating and
distributing the water consistent with principles of federal and western
water law (including federal reserved rights), as well as an array of
interdependent legal requirements set out in interstate compacts,
statutes, court decrees, agreements, contracts, and an international
treaty. Navajo contends that the Secretary of the Interior (“Secretary”)
cannot lawfully manage the Colorado River absent a determination of
the scope and quantity of rights Navajo may hold in the Lower Basin of
the Colorado River.
Navajo’s claims rest on the premise that the United States owes
special fiduciary duties to Navajo arising from Navajo’s beneficial
ownership of the Navajo Reservation, that include a duty to quantify
Navajo’s water rights, including potential water rights in the River.
Although Navajo’s claims rest on NEPA and the APA, the relief Navajo
seeks is the enforcement of purported trust duties unrelated to
compliance with federal statutes. The district court rejected the premise
underlying Navajo’s claims as unfounded and dismissed the complaint.
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STATEMENT OF THE ISSUES
The Secretary, through the Bureau of Reclamation (“Bureau”), is
charged with managing the mainstream waters of the Lower Basin of
the River (“Lower Basin”) in Nevada, California, and Arizona under a
complex array of statutes, court decrees, and contractual agreements.
The Navajo Reservation is located in part within the Lower Basin and
includes unquantified reserved water rights, which may include rights
in Lower Basin waters. In 2001, the Secretary, through the Bureau,
published operational guidelines for reducing California’s historical
overuse of the River and managing surplus water in the Lower Basin.
In 2007, the Secretary published revised guidelines for managing the
operation of dams in both the Upper and Lower Basins of the River.1
The 2007 guidelines revised the 2001 surplus guidelines and
established guidance (“shortage guidelines”) for reduced water releases
under drought and low-reservoir conditions. The Bureau also published
1 The challenged 2007 guidelines affect the operations of both Lake Powell, the reservoir created and managed by the Glen Canyon Dam in the Upper Basin of the River, and Lake Mead, the reservoir created and managed by the Hoover Dam, which is located in the Lower Basin. The guidelines accordingly affect the rights and obligations of all seven Colorado River Basin states under the Law of the River.
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environmental impact statements (EISs) addressing the potential
environmental consequences of implementing each of these
management actions. Navajo seeks to invalidate the 2007 guidelines on
grounds that the EISs do not adequately consider alleged impacts on
Navajo’s potential water rights and that they purportedly contain
invalid statements regarding the Bureau’s consideration of Indian
reserved water rights. Navajo further alleges that the United States has
breached a fiduciary duty to quantify Navajo’s water rights under the
doctrine established in Winters v. United States, 207 U.S. 564, 577
(1908). The issues are:
1. Is an allegation that the United States’ management regime
may lead to expectations on the part of competing Arizona
water users, and that such expectations could later result in
difficulty securing the use of water for the Navajo Reservation,
sufficient to support Article III standing to challenge the
Secretary’s compliance with the National Environmental Policy
Act in revising the regime to ensure predictable delivery of
water to Colorado River water users?
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2. Did the district court lack jurisdiction to hear an
Administrative Procedure Act challenge premised on the
United States’ alleged breach of a fiduciary duty quantify
Navajo’s reserved water rights, including potential water rights
in the Colorado River, where Navajo failed to identify any
treaty, statute, or other source of substantive law establishing
such a duty?
3. Did the district court abuse its discretion by denying Navajo’s
post-judgment motion for leave to revise its complaint?
STATEMENT OF FACTS
Navajo challenges the Secretary’s revision of guidelines for
implementing the Bureau’s responsibilities under the Law of the River.
That legal regime evolved over the course of the twentieth century, as
the uses of Colorado River water increased, and interested states’
concerns over water scarcity threatened destabilizing conflict. See
generally, Arizona v. California, 373 U.S. 546 (1963). The Law of the
River has established an apportionment of water among the Lower
Basin states. The Secretary is charged, among other things, with
implementing the Law of the River through the operation of the system
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of federal water storage and flood-control projects that has been
constructed for the management of the River. The 2007 guidelines
challenged here reflect the Secretary’s efforts to enhance the efficiency
of those operations, to encourage conservation and economical use of
water, and to improve the predictability of delivery under existing
water contracts.
A. Historical Background
1. Background principles: the law of prior appropriation and Indian reserved water rights
The “prior appropriation doctrine” governs the use of water in
most of the western states. Under this system, water rights are
acquired by diverting water and applying it to a beneficial purpose. A
distinctive feature of the prior appropriation doctrine is the rule of
priority, under which the relative rights of water users are ranked in
the order of their seniority. Colorado v. New Mexico, 459 U.S. 176, 179
n.4 (1982) (citing 1 R. Clark, Waters and Water Rights (1967); W.
Hutchins, Selected Problems in the Law of Water Rights in the West
(U.S. Dept. of Agriculture, Misc. Pub. No. 418) (1942); 1 W. Hutchins,
Water Rights Laws in the Nineteen Western States (U.S. Dept. of
Agriculture, Misc. Pub. No. 1206) (1971)).
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Water rights are usufructuary, not possessory, rights. See Federal
Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 247 n.
10 (1954). Accordingly, under the law of prior appropriation, the owner
of a water right merely holds a right to put water to beneficial use but
has no ownership interest in the water itself. Owners of such rights
therefore cannot appropriate more water than they need, and may not
prevent others from using the water when it is not needed for the
purposes of the appropriation. Gotelli v. Cardelli, 69 P. 8 (Nev. 1902);
Claypool v. O’Neill, 133 P. 349, 351 (Ore. 1913). Appropriative rights
ordinarily do not depend on land ownership and are acquired and
maintained by actual use. Colorado v. New Mexico, 459 U.S. at 179. The
failure to put appropriated water to beneficial use over extended periods
of time may result in the loss of the water right through abandonment
or forfeiture. Desert Irrigation, 944 P.2d at 842.
Against the backdrop of the prior appropriation doctrine, Congress
severed rights in the use of water on federally-owned lands from other
rights in the lands and subjected water rights to administration under
state law. California Oregon Power Co. v. Beaver Portland Cement Co.,
295 U.S. 142 (1935). The Supreme Court has held that Congress
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impliedly reserved unappropriated water sufficient to effectuate its
purposes for use on lands reserved for specific federal purposes, such as
Indian reservations. Winters, 207 U.S. at 577 (1908); see also, Colville
Confederated Tribes v. Walton, 647 F.2d 42, 46–47 (9th Cir.1981)
(water rights reserved for specific reservation purposes identified
through consideration of multiple factors, including document creating
reservation, circumstances surrounding creation, history of tribe, and
need of tribe to maintain itself under changed circumstances). This
doctrine also applies in other circumstances, including when
interpreting an executive order that created an Indian reservation.
Arizona v. California, 373 at 597-98; Cappaert v. United States, 426
U.S. 128, 143-46 (1976), see also United States v. Winans, 198 U.S. 371
(1906) (treaty-reserved aboriginal rights); United States v. Adair, 723
F.2d 1394, 1414 (9th Cir.1983) (same). Unlike state-law claims based on
prior appropriation, federal and Indian reserved water rights are not
based on actual beneficial use and cannot be lost to forfeiture or
abandonment for non-use. “Vested no later than the date each
reservation was created, these Indian rights are superior in right to all
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subsequent appropriations under state law.” Arizona v. San Carlos
Apache Tribe of Arizona, 463 U.S. 545, 574 (1983).
2. The Law of the River
The Colorado River flows over about 1,300 miles through
Colorado, Utah, and Arizona and along the Arizona-Nevada and
Arizona-California boundaries, after which it passes into Mexico and
empties into the Mexican waters of the Gulf of California. Arizona v.
California, 373 U.S. at 552. It receives tributary waters from Wyoming,
Colorado, Utah, Nevada, New Mexico, and Arizona, and drains an area
of approximately 242,000 square miles—practically one-twelfth of the
area of the continental United States excluding Alaska. Ibid. Much of
this large basin is so arid that it is, and has always been, dependent
upon managed use of the waters of the Colorado River System to make
it productive and inhabitable. Ibid. The Secretary is charged with
managing the River in accordance with an elaborate regime of
interlocking requirements set out in interstate compacts, court decrees,
statutes, agreements, contracts, and an international treaty. The
guidelines challenged here were promulgated to assist in implementing
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that management regime, relevant aspects of which are summarized
below.
a. The 1922 Compact
In the late nineteenth and early twentieth centuries, the “pressing
necessity to transform the erratic and often destructive flow of the
Colorado River into a controlled and dependable water supply
desperately needed in so many States” (id. at 554), and the need for
federal government assistance in achieving that transformation,
became apparent. But because the prevailing water law in the western
states was prior appropriation, see Wyoming v. Colorado, 259 U.S. 419
(1922), the prospect of federal investment in flood-control and storage
works intensified concerns that the waters stored by federal projects
would be “gobbled up in perpetuity by faster growing” downstream
states (Arizona, Nevada, and California), before the upstream River
states (Wyoming, Colorado, Utah, and New Mexico) could appropriate
what they believed to be their fair share. Arizona v. California, 373 U.S.
at 554.
The Basin states therefore requested, and on August 19, 1921,
Congress passed, a statute giving the states consent to negotiate and
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enter into a compact for the “equitable division and apportionment * * *
of the water supply of the Colorado River.” 42 Stat. 971 (1921). On
November 24, 1922, the states completed the Colorado River Compact
(“Compact”). See ER 153-57.
The Compact divided the River basin into two parts, the Upper
and Lower Basins (ER 154, Art. II ¶¶ (f) & (g)) and apportioned
7,500,000 acre-feet of water per year (“afy”) to each basin in perpetuity
(ER 153, Art. III ¶ (a)). It also provided that “[p]resent perfected rights
to the beneficial use of waters of the Colorado River System are
unimpaired by this compact.” Id. at Art. VIII (ER 156). Article VII of the
Compact expressly provides that “[n]othing in this compact shall be
construed as affecting the obligations of the United States of America to
Indian reservations.” Id. at Art. VI (ER 156).
b. The Boulder Canyon Project Act
In 1928, Congress enacted the Boulder Canyon Project Act, 43
U.S.C. § 617 et seq. (“Boulder Project Act”), in which it conditionally
approved the Compact–which had not yet been ratified–and authorized
the Secretary of the Interior, “subject to the terms of the [C]ompact,” to
construct, operate, and maintain a dam in the mainstream of the River
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at Black Canyon or Boulder Canyon, “adequate to create a storage
reservoir of a capacity of not less than twenty million acre-feet of
water.” Boulder Project Act, § 1 (43 U.S.C. 617). This dam is known
today as Hoover Dam.
The Boulder Project Act directs that water stored by the Project be
used for “irrigation and domestic uses and satisfaction of present
perfected rights recognized by the Compact.” Id. at § 6. Under sections
4(a) and 5 of the statute, water from the Project was to be made
available by contract with the Secretary; and the three Lower Basin
states (Arizona, California, and Nevada) were authorized to enter into
an agreement apportioning 300,000 acre-feet per year (“afy”) of
mainstream Colorado River water to Nevada, 2.8 million acre-feet per
year (“mafy”) to Arizona, and 4.4 mafy to California. The Boulder
Project Act provided that it would become effective upon the ratification
of the Compact, either by all seven states or alternatively by only six
states, provided that the California legislature assented by enactment
to the statutory 4.4 mafy apportionment. On March 4, 1929, the
California Legislature adopted the “California Limitation Act,” in which
it “irrevocably and unconditionally” agreed to the 4.4 mafy limitation
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(SER 1). The Boulder Project Act thus became fully effective on June 25,
1929, after six of the seven Basin States (excluding Arizona) ratified the
Compact. The Secretary subsequently entered into contracts for
delivery to the three Lower Basin states of water from the Project’s
reservoir (known as Lake Mead).
c. The Arizona v. California decision and decree (Supreme Court No. 8, Original)
Disputes over Lower Basin water persisted, however. The states
did not enter a three-state agreement regarding apportionment of the
water, and in the 1930s, the Secretary contracted to deliver 5.3 mafy to
California. Arizona sought federal assistance to construct a project that
would allow the delivery of Colorado River water to Central Arizona,
and California disputed Arizona’s right to use River water for the
proposed Central Arizona project. In 1953, the Supreme Court granted
Arizona’s motion for leave to file an original action seeking a decree
confirming Arizona’s right to the beneficial consumptive use of 3.8 mafy
of mainstream Lower Colorado River water, and limiting California’s
entitlement to such water to 4.4 mafy. See Arizona v. California, 344
U.S. 919 (1953).
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The Supreme Court concluded that the Boulder Project Act, and
not the Compact or the doctrine of equitable apportionment, governs the
division of mainstream water rights in the River among the Lower
Basin states. It further held that in the Boulder Project Act, Congress
established that a fair apportionment of the first 7,500,000 acre-feet of
mainstream waters would allocate 2.8 mafy to Arizona and would limit
California’s share to 4.4 mafy. 373 U.S. 560, 564-65. It held that
tributary waters would not be divided among the states, and would
instead remain for exclusive use within each state. Id. at 567.
The United States intervened to assert reserved rights for various
federal purposes, including the Navajo and other Indian reservations.
In proceedings before a special master, the United States asserted
Winters rights on behalf of 25 Indian reservations that drain into the
Lower Colorado River and its tributaries. The United States presented
evidence of 8,490 irrigable acres in the portion of the Navajo
Reservation situated in the Lower Colorado River Basin, all within the
drainage area of the Little Colorado River (SER 2).
The special master declined to reach many of the United States’
claims, including the claims for reserved rights in the Little Colorado
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River asserted for the Navajo Reservation. 373 U.S. at 595. The
Supreme Court approved the Special Master’s decision not to reach
these claims. The Court held, however, that the United States has
reserved mainstream water rights for five Indian reservations, effective
when the reservations were created, and that those rights are “present
perfected rights” entitled to priority under the Boulder Project Act. It
further held that quantification of these Winters rights should be based
on a “practically irrigable acreage” standard. Id. at 600-01. The Court
did not approve the special master’s decision to resolve boundary
disputes affecting tribes whose reservations include mainstream water
rights. It held that addressing these disputes was unnecessary, because
“should a dispute over title arise because of some future refusal by the
Secretary to deliver water to either area, the dispute can be settled at
that time.” Id. at 601.
The Court entered a decree (“1964 decree”) that required the
states and the Secretary to provide the Court with a list of present
perfected rights to the use of the mainstream in each state within two
years. It allowed the parties to apply to the Court for a determination of
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such rights if the states and the United States could not agree as to the
rights and their priority dates.
The United States applied for a determination of the “present
perfected rights” of the five tribes whose Winters claims were confirmed
in the 1964 decree. The parties then undertook negotiations to quantify
and determine the priorities of water rights of all holders of “present
perfected rights” in the Lower Basin; and the resulting stipulation of
such rights was included in a supplemental decree entered in 1979. See
Arizona v. California, 439 U.S. 419 (1979). The Court has since adjusted
and supplemented the 1964 decree on several occasions to reflect the
resolution of reservation boundary disputes and associated water
rights, most recently in 2006. Arizona v. California, 547 U.S. 150 (2006).
Article IX, which provides that the Court retains jurisdiction and may
modify the decree as may be deemed proper at any time, remains
unchanged in the decree.
d. The Colorado River Project Act and the Central Arizona Project
Congress enacted the Colorado River Basin Project Act of 1968
(“Colorado River Project Act”), Pub. L. No. 90-537, 82 Stat. 885, 43
U.S.C. § 1501 et seq., to address the operation of federal storage
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reservoirs and dams in the Colorado River Basin. Among other things,
the Colorado River Project Act authorized construction and operation of
the Central Arizona Project. 43 U.S.C. § 1521. The Colorado River
Project Act additionally required the Secretary to adopt criteria for the
coordinated long-range operation of the reservoirs in the Basin, 43
U.S.C. §1552(b), and, beginning in 1972, to annually “transmit to the
Congress and to the Governors of the Colorado River Basin States a
report describing the actual operation under the adopted criteria for the
preceding compact water year and the projected operation for the
current year.” Id.
B. The National Environmental Policy Act (“NEPA”)
Congress enacted the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4331, et seq., to ensure that federal agencies fully
consider the environmental consequences of proposed actions. 42 U.S.C.
§ 4332. The procedural requirements set forth in NEPA are designed to
inform the decision-making of these agencies regarding potential
impacts of their proposed actions on the human environment. See, e.g.,
42 U.S.C. § 4331(b).
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NEPA requires federal agencies “to the fullest extent possible” to
prepare an Environmental Impact Statement (“EIS”) for “every * * *
major Federal action significantly affecting the quality of the human
environment.” Winter v. Natural Resources Defense Council, Inc., 129
S. Ct. 365, 372 (2008). An EIS is a detailed analysis and study
conducted to determine whether, or the extent to which, a proposed
project will affect the environment. In accordance with regulations
issued by the Council on Environmental Quality (“CEQ”), an EIS must
disclose, to the extent possible, the direct, indirect, and cumulative
impacts of the proposal, and must evaluate alternatives to the proposed
action. 40 C.F.R. § 1502.14.
NEPA does not impose any substantive requirements on federal
agencies—it “exists to ensure a process.” Inland Empire Pub. Lands
Council v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996).
NEPA aims to make certain that ‘“the agency * * * will have available,
and will carefully consider, detailed information concerning significant
environmental impacts,’ and ‘that the relevant information will be made
available to the larger [public] audience.’” Lands Council v. McNair, 537
F.3d 981, 1000 (9th Cir. 2008) (en banc) (quoting Robertson v. Methow
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Valley Citizens Council, 490 U.S. 332, 349 (1989)); see also 40 C.F.R. §
1500.1(c) (“The NEPA process is intended to help public officials make
decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and enhance the
environment.”). After it completes the NEPA process, the agency
prepares a “Record of Decision” (“ROD”), which announces the agency’s
final decision. The agency’s issuance of a ROD documents both the
agency’s completion of the environmental review process (see e.g., 40
C.F.R. § 1505.2; 40 C.F.R. § 1506.1) and its substantive decision to take
action. See 36 C.F.R. § 218.2 (defining a ROD as a document “recording
a decision that was preceded by preparation of an environmental impact
statement”).
C. Factual Background
In recent years, the Secretary has implemented a series of water
management actions to enhance the operations of Lower Colorado River
project facilities, and to enable the Lower Basin States to manage and
conserve water to which they are entitled under Boulder Project Act
contracts and the Arizona v. California Decree, with greater
predictability, efficiency, and economy. At issue in this appeal are
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interim surplus water guidelines published in 2001 and revised in 2007;
and guidelines published in 2007 for management of the River under
drought conditions.
1. The Interim Surplus Water Guidelines
The 1964 Arizona v. California Decree provides that if enough
water is available in a single year for pumping or release from Lake
Mead to satisfy annual consumptive use in the states of California,
Nevada and Arizona in excess of 7.5 million acre-feet (maf), that water
may be determined by the Secretary to be available as “surplus” water,
and apportioned such that 50% of the surplus is available for use in
California, 46% for use in Arizona and 4% percent for use in Nevada.
376 U.S. at 342.
Under the Colorado River Project Act, 43 U.S.C.1552, the
Secretary is required to adopt “Long-Range Operating Criteria”
(“Operating Criteria”) for determining whether the reasonable
consumptive use requirements of mainstream users in Arizona,
California and Nevada (the Lower Division states) can be met. The
Operating Criteria are utilized by the Secretary in establishing Annual
Operating Plans (“AOP”), as required by the Colorado River Basin
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Project Act, for the storage reservoirs in the Colorado River Basin for
the upcoming year.
For many years, the Secretary relied on ad hoc consideration of
factors in the Operating Criteria such as end-of-year system storage,
potential runoff conditions, and projected water demands of the Basin
States, in making decisions about the existence of surplus water supply
conditions in the Lower Colorado River (SER 9). The year-to-year
variation in the factors considered by the Secretary in making surplus
water determinations made projections of surplus water availability
highly uncertain (SER 7).
The Secretary sought to lessen this uncertainty through the
adoption of interim surplus criteria, which would enable the Bureau to
afford mainstream users of Colorado River water (primarily in
California) who routinely utilized surplus flows a greater degree of
predictability with respect to the likely existence, or lack thereof, of
surplus conditions on the river in a given year. Id. Based upon
information submitted by the seven Colorado River Basin States, the
Secretary developed, as the preferred alternative for NEPA purposes,
the “Basin States Alternative,” under which specified ranges of Lake
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Mead water surface elevations would be used for determining the
availability of surplus water, on an interim basis through 2016 (SER
11).
The Bureau evaluated the environmental impacts of the preferred
alternative, and various other alternatives (including the “no action”
alternative) in a draft environmental impact statement (EIS) issued in
July 2000. After receiving comment on the draft EIS, the Bureau issued
its final EIS (“FEIS”) in December 2000 (see ER 277), in which it
concluded that “the interim surplus criteria will not alter the quantity
or priority of tribal entitlements.” (See SER 26-27). On January 16,
2001, the Secretary issued a Record of Decision (“ROD”) (ER 158)
adopting Interim Surplus Guidelines, which were to apply from 2001
through 2016. Those guidelines were modified and extended in
conjunction with the adoption of guidelines for management in years of
water shortage, in 2007, as discussed below.
2. The Shortage Guidelines
With respect to shortages in water supply, the 1964 Arizona v.
California Decree, 376 U.S. at 343, directs that, if the Secretary
determines that insufficient mainstream water is available for release
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to satisfy annual consumptive use of 7,500,000 acre feet in Arizona,
California, and Nevada, the Secretary may apportion the amount that
remains available for consumptive use consistent with the Boulder
Project Act and applicable federal statutes. From 1999 to 2007, the
Colorado River experienced the worst eight-year period of drought in
over a century of continuous recordkeeping (SER 20). Water levels in
Lake Powell (impounded by Glen Canyon Dam, upstream of Lee Ferry,
Arizona) and Lake Mead (impounded by Hoover Dam) declined due to a
combination of lower-than-average supply and increasing demand (SER
19)As of 2005, the Bureau had not yet developed operational rules for
the full range of operations at Lake Powell and Lake Mead because
such low-reservoir conditions had not previously occurred SER 18-19).
In May 2005, Interior undertook to provide greater certainty to water
users and managers in both the Upper and the Lower Basins as to
when, and by how much, water deliveries will be reduced in drought
and other low reservoir conditions by developing new operational
guidelines and tools to address drought conditions and water shortages
in the Colorado River Basin (SER 18).
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In accordance with the requirements of NEPA, the Bureau
developed the Preferred Alternative, which would determine shortage
volumes based on water-level elevations in Lake Mead, and would
coordinate the operations of Lake Powell and Lake Mead to minimize
shortages in the Lower Basin and avoid the risk of curtailments in the
Upper Basin (SER 23). The Preferred Alternative would also establish a
mechanism to encourage and account for augmentation and
conservation of water supplies in the Lower Basin, referred to as
Intentionally Created Surplus, that would minimize the likelihood and
severity of potential future shortages (SER 25) Finally, the Preferred
Alternative would determine those conditions under which the
Secretary may declare the availability of surplus water for use within
the Lower Division states, and in so doing would extend and modify the
substance of the existing Interim Surplus Guidelines from 2016 through
2026 (SER 19).
The Bureau published a draft EIS in February 2007. In the draft
EIS, the Bureau analyzed the environmental impacts of six
alternatives. Following a public comment period, the Bureau published
its FEIS in November 2007 (See SER 15). With respect to individual
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water rights, the FEIS stated that “[n]o vested water right of any kind,
quantified or unquantified, including federally reserved Indian rights to
Colorado River water * * * will be altered as a result of any of the
alternatives under consideration” (ER 121). The Secretary signed the
ROD for the 2007 guidelines in December 2007 (ER 280). The ROD
adopted specific interim guidelines for managing Lower Basin shortages
and coordinating operations of Lake Powell and Lake Mead, applicable
to water supply and reservoir operating decisions through 2026. At the
same time, the Secretary modified and extended the Interim Surplus
Guidelines to apply from 2016 to 2026.
PROCEDURAL BACKGROUND
On March 14, 2003, Navajo filed a Complaint for Declaratory and
Injunctive Relief alleging that all of the Secretary’s recent River
management actions must be set aside as inconsistent with NEPA and
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(2)(A) – (C),
because the actions allegedly fail to account for and protect Navajo’s
potential water rights in the Colorado River. (ER 141-144; 2d Am.
Comp. at ¶¶ 63–67, 69–71, 73-76, 82-84). Additionally, Navajo alleges
that Interior’s Interstate Water Banking Regulations, 43 C.F.R. Part
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414, are unlawful, on the ground that they fail to account for Navajo’s
potential water rights in the River. The Complaint further alleges that
the Secretary has a fiduciary duty to quantify Navajo’s potential water
rights in the mainstream of the River, and to take actions necessary to
secure and deliver water as necessary for the reservation’s purposes
(ER 145).
Following a lengthy stay during which the parties unsuccessfully
attempted to negotiate a settlement, Navajo amended its Complaint.
The United States and numerous intervening parties moved to dismiss
the amended complaint. Following the motions to dismiss, Navajo again
amended the Complaint (ER 123). On July 22, 2014, the district court
granted the United States’ motion and dismissed the remaining motions
as moot (ER 5). It held that Navajo had not alleged facts sufficient to
establish federal court jurisdiction over its claims and dismissed the
Complaint without prejudice. Following dismissal of the Complaint,
Navajo filed a motion for relief from judgment under Rule 60(b)(6),
seeking leave to amend its complaint. The district court denied that
motion (ER 3).
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SUMMARY OF ARGUMENT
The district court correctly concluded that Navajo has not alleged
facts sufficient to establish standing to challenge the Secretary’s
compliance with NEPA. Navajo’s complaint alleges remote and
speculative injury to an interest that is itself contingent and
speculative, and therefore does not satisfy the prerequisites for “injury
in fact.” The requirement of injury-in-fact is a “hard floor of Article III
jurisdiction that cannot be removed by statute,” Summers v. Earth
Island Institute, 555 U.S. 488, 497 (2009), and Navajo’s complaint
therefore fails to allege a justiciable controversy within the Article III
jurisdiction of the federal courts.
The complaint’s allegations of injury from the Secretary’s alleged
breach of a fiduciary duty suffers from the same defect. Fiduciary duties
enforceable against the United States in federal court must be
established by a treaty, statute, or other substantive source of law.
Navajo’s complaint failed to identify any such source of law establishing
a duty to take affirmative steps to quantify Navajo’s potential water
rights in the River. Absent such a duty, Navajo’s alleged injury is not
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“fairly traceable” to a breach of fiduciary duty, and therefore fails to
satisfy the requisites of injury-in-fact.
For many of the same reasons that the injury alleged here is not
sufficient to establish standing, Navajo’s claims fail to meet the criteria
for ripeness. Navajo’s complaint presents an abstract challenge “wholly
contingent upon the occurrence of unforeseeable events.” Its allegations
therefore are insufficient to satisfy the constitutional prong of the
ripeness doctrine under this Court’s precedents.
Moreover, even if the claims are constitutionally justiciable, they
must be dismissed in any event for failure to state a claim on which
relief may be granted. Navajo alleges that the United States may have
greater difficulty in securing any priority water rights Navajo may have
in the Lower Colorado River because of third parties’ reliance on
delivery of surplus water under the guidelines. Navajo does not allege
that the Bureau failed to consider any environmental impact on its
interests in using the water, nor does it contend that harm to the
environment from the guidelines will interfere with its interest in
reserved water rights. The interests Navajo seeks to vindicate thus are
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not within the “zone of interests” protected by NEPA, and its complaint
must be dismissed for lack of subject matter jurisdiction.
The district court correctly dismissed Navajo’s breach-of-trust
claims for lack of subject matter jurisdiction. It held that the APA does
not waive the United States’ sovereign immunity from claims for
common-law breach of trust, fully comports with this Court’s
precedents. Moreover, regardless whether the claim is barred by
immunity, this Court’s precedents dictate that no cause of action exists
for breach-of-trust claims that are not based on specific statutory or
other provisions of substantive law establishing the fiduciary duty
allegedly breached. Because Navajo alleges a common-law breach of
trust, its claims in this regard must be dismissed on the alternative
ground of failure to state a claim on which relief may be granted.
Finally, the district court did not abuse its discretion in denying
Navajo’s Rule 60(b)(6) motion to amend its complaint. The court applied
the standard of review applicable to motions filed under that provision
and reasonably concluded that Navajo had not shown the required
“extraordinary circumstances.” The district court was well within its
broad discretion under Rule 60 in concluding that Navajo was not
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entitled to the liberal standard ordinarily applicable to motions to
amend, because Navajo had provided no explanation for its failure to
make a timely motion under the relevant rule, and had twice previously
amended its complaint. The judgment of dismissal below therefore
should be affirmed.
STANDARD OF REVIEW
The jurisdiction of the federal courts is limited to “cases” and
“controversies.” U.S. Const. art. III, § 2. “If the court determines at any
time that it lacks subject matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3). This Court reviews de novo the district
court’s assumption of jurisdiction. Washington Environmental Council
v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013).
“The existence of subject matter jurisdiction is a question of law
reviewed de novo.” Opera Plaza Residential Parcel Homeowners Ass’n
v. Hoang, 376 F.3d 831, 833 (9th Cir. 2004). “It is a fundamental
principle that federal courts are courts of limited jurisdiction.” Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Where
jurisdiction is challenged pursuant to Rule 12(b)(1), “[a] federal court is
presumed to lack jurisdiction in a particular case unless the contrary
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affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873
F.2d 1221, 1225 (9th Cir. 1989); see Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (non-moving party bears the burden to
establish that subject matter jurisdiction exists).
This Court can affirm the district court’s dismissal on any ground
supported by the record, even if the district court did not expressly rely
on it. See Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849,
855 (9th Cir. 2012). To survive a motion to dismiss under Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 652, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Under Iqbal, a court first “identif[ies] pleadings that,
because they are no more than conclusions, are not entitled to the
assumption of truth.” 556 U.S. at 679. If any well-pleaded allegations
remain, the court will “assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id.
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ARGUMENT
I. The district court correctly dismissed Navajo’s NEPA claims
The district court here correctly concluded that Navajo failed to
allege a justiciable “case or controversy” with respect its claims that the
Secretary’s actions violate the procedural requirements of NEPA. The
Supreme Court recently reiterated that “[n]o principle is more
fundamental to the judiciary’s proper role in our system of government
than the constitutional limitation of federal-court jurisdiction to actual
cases or controversies.” Clapper v. Amnesty Int’l. USA, 133 S. Ct. 1138,
1146 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006). This Court thus has observed that “[t]he Courts’ role is neither
to issue advisory opinions nor to declare rights in hypothetical cases,
but to adjudicate live cases or controversies consistent with the powers
granted the judiciary in Article III of the Constitution.” Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000).
Accordingly, “prior to the exercise of jurisdiction, the courts must
determine that there exists a constitutional ‘case or controversy,’ that
the issues presented are ‘definite and concrete, not hypothetical or
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abstract.’” Thomas, 220 F.3d at 1139 (quoting Railway Mail Ass’n v.
Corsi, 326 U.S. 88, 93 (1945)).
To satisfy the requisites of a justiciable “case or controversy,”
plaintiffs “must establish that they have standing to sue.” Raines v.
Byrd, 521 U.S. 811, 818 (1997); Lujan v. Defenders of Wildlife, 504 U.S.
at 560 (1992). Navajo has failed to do that here.
A. Navajo has not alleged facts sufficient to establish standing to challenge alleged NEPA violations.
To establish Article III standing, an injury must be “concrete,
particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.” Monsanto Co.
v. Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010); see Lujan, 504
U.S. at 564-65 n.2 (1992) (citing Whitmore v. Arkansas, 495 U.S. 148,
155 (1990)).
Moreover, “deprivation of a procedural right without some
concrete interest that is affected by the deprivation—a procedural right
in vacuo—is insufficient to create Article III standing.” Summers, 555
U.S. at 496. Only a “person who has been accorded a procedural right to
protect his concrete interests can assert that right without meeting all
the normal standards for redressability and immediacy.” Ibid. (quoting
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Lujan, 504 U.S. at 572 n.7 (emphasis in original)). Thus, although
where injury-in-fact is established, the requirements to show causation
and redressability are relaxed somewhat for a party alleging that a
federal agency has violated procedural law (see Summers, 555 U.S. at
1151; Lujan, 504 U.S. at 560), those requirements are not eliminated
entirely. See Nuclear Info & Res. Serv. v. Nuclear Regulatory Comm’n,
457 F.3d 941, 49 (9th Cir. 2006) (“We have recognized that our analysis
of Article III standing is ‘not fundamentally changed’ by the fact that a
petition asserts a ‘procedural,’ rather than a ‘substantive’ injury”)
(quoting City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir.
2004)).
1. Navajo has not alleged injury-in-fact from alleged NEPA violations
Navajo alleges injury that is remote and speculative to an interest
that is itself remote and speculative. Its allegations meet none of the
prerequisites of injury-in-fact. The requirement of injury-in-fact is a
“hard floor of Article III jurisdiction that cannot be removed by statute.”
Summers, 555 at 497. Accordingly, to state a justiciable claim, “the
plaintiff must have suffered an ‘injury in fact,’ ” which is both concrete
and particularized, as well as actual or imminent. Sturgeon v. Masica,
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768 F.3d 1066, 1071 (9th Cir. 2014) (quoting Lujan, 504 U.S. at 560). An
allegation of future injury may suffice if the threatened injury is
“certainly impending,” or there is a “‘substantial risk’ that the harm will
occur.” Clapper, 133 S. Ct. at 1150, n. 5, 1161 (2013).
Where, as here, plaintiffs allege an injury dependent on the acts of
others, the Supreme Court has required a “high degree of immediacy,”
to reduce the possibility of deciding a case in which no injury would
have occurred at all. Lujan, 504 U.S. at 564 n.2, citing Whitmore v.
Arkansas, 495 U.S. 149, 156–60; Los Angeles v. Lyons, 461 U.S. 95,
102-06 (1983). Neither “speculation [n]or ‘subjective apprehension’
about future harm support[s] standing.” Mayfield v. United States, 599
F.3d 964, 970 (9th Cir. 2010) (quoting Friends of the Earth v. Laidlaw
Envt’l Servs., Inc., 528 U.S. 167, 184 (2000)).
Navajo’s complaint alleges that the Bureau violated NEPA by
failing to give adequate consideration in its FEISs to the effect of the
guidelines on Navajo’s future ability to develop its potential water
rights. Navajo asserts (Br. 19) that this alleged procedural injury is
sufficient to invoke federal court jurisdiction over its NEPA claims. But
Navajo’s alleged injury is speculative and is not traceable to the
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guidelines; and in any event NEPA does not accord Navajo a procedural
right to protect the interests at stake here, because nothing in NEPA
requires consideration of the “impacts” allegedly overlooked by the
Bureau.
Navajo’s complaint alleges (ER 25-26, ¶ 31) that “the allocation of
water from the Colorado River without regard to the Navajo Nation’s
rights * * * establishes a system of reliance upon the Colorado River” by
third parties, which “will operate to make allocation of Colorado River
water to the Navajo Nation * * * increasingly difficult.” Ibid. Navajo
asserts (Br. 26) that the Bureau violated NEPA by failing to adequately
consider whether the operation of the guidelines might “significantly
reduce the supply of currently undeveloped water from the Colorado
River for up to 50 years,” and thereby “hinder Navajo’s ability to
develop its own surplus supplies in the future.” It asserts that “it is
reasonable to fear that [the guidelines] will limit the Navajo Nation’s
future options” in developing its Winters rights. The district court
found that these allegations do not demonstrate the requisite
connection between Navajo’s alleged injury and the challenged
guidelines to establish that it is “reasonably probable” that the
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guidelines will threaten Navajo’s interests. The district court correctly
concluded (ER 14) that Navajo failed to allege facts sufficient to support
standing.
a. Navajo does not allege concrete injury.
A plaintiff possesses standing to enforce procedural rights “so long
as the procedures in question are designed to protect some threatened
concrete interest of his that is the ultimate basis of his standing.”
Sturgeon v. Masica, 786 F.3d at 1086 (quoting Lujan, 504 U.S. at 573 n.
8). Navajo does not allege that the Bureau failed to consider
environmental harm – or direct impact of any kind – to Navajo’s lands
or resources from the guidelines. Instead, Navajo asserts (Br. 25) that
the Bureau “ignore[d] political and practical realities,” and speculates
that the Bureau will not fulfill its commitment to “manage the Colorado
River consistent with any tribal rights developed, established or
quantified” while the guidelines are in effect. Navajo’s fear regarding
future competition for scarce water resources is entirely speculative and
does not suffice to demonstrate the requisite injury-in-fact to establish
standing.
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To begin with, Navajo’s claims are founded on the assumption
that it has an as-yet unquantified interest in the mainstream of the
Colorado River. Although the creation of the Reservation reserved
water rights pursuant to Winters, Navajo concedes (Br. 9) that it does
not have an adjudicated right to use mainstream waters. As discussed
above, in the Arizona v. California litigation, the United States filed
claims for water rights associated with the Navajo Reservation, but the
Special Master declined to reach those claims. And as Navajo
acknowledges (ER 123; Complaint ¶ 28), the United States has filed
claims on behalf of Navajo in the Little Colorado River Adjudication, a
comprehensive water rights adjudication currently proceeding in
Arizona state court, and has assisted Navajo in securing rights in other
waters, in New Mexico and Utah.2 The water rights reserved for the
Navajo Reservation therefore may be satisfied from sources other than
2 The McCarran Amendment, 43 U.S.C. § 666, waived the sovereign immunity of the United States as to comprehensive state water-rights adjudications (see Colorado River Conservation District v. United States, 424 U.S. 800 (1976)), and provides state courts with jurisdiction in such adjudications to determine Indian water rights held in trust by the United States. Id.; Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 567 n.17 (1983). The federal courts retain concurrent jurisdiction to adjudicate such rights but may not exercise it during the pendency of a comprehensive state adjudication. Id.
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the mainstream Colorado River. Because it has not been determined
that Navajo has water rights in the mainstream Lower Colorado River,
it is speculative whether Navajo could be injured by actions to manage
the mainstream.3
And even assuming Navajo were to establish rights in the
mainstream River, its claimed injury based on as-yet unquantified
rights is not sufficiently concrete to support standing. As the district
court correctly observed, the guidelines do not regulate any of Navajo’s
activities. Nor do they impinge on its Reservation lands. Navajo alleges
instead (ER 133; Complaint ¶ 31, 40, 45,) that the guidelines will
“establish a system of reliance” by third parties on water from the
mainstream for which Navajo might someday have a priority right. It
3 Navajo’s claim to the “special solicitude” owed to states (see Massachusetts v. EPA, 549 U.S. 497, 520 & n.17 (2011)) in this context is unavailing. Although Navajo has a sovereign interest in its Reservation and attendant water rights, it has no adjudicated right to divert water from the mainstream, regardless of the character of any right it might ultimately secure. The Supreme Court accorded “special solicitude” where the State submitted extensive scientific evidence that identified existing and threatened injuries to state interests, including the physical loss of state lands, to rising sea levels. Massachusetts, at 521-23. In contrast, Navajo does not allege that River management under the guidelines will have any direct effect on Navajo’s lands or water rights.
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asserts (see Br. 27) that this “reliance” may interfere with the United
States’ ability to secure water rights in the River for Navajo. But NEPA
was not designed to protect Navajo’s interest in securing the water
rights that are the ultimate basis of its claim. NEPA instead provides
procedural protection to assure consideration of environmental values
in agency decision-making.
Moreover, Navajo’s alleged injury is contingent on actions of third
parties that would somehow interfere in the future with Navajo’s
exercise of its potential priority right to divert and use water. “A claim
is not ripe for adjudication if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all,’ * * *
because, if the contingent events do not occur, the plaintiff likely will
not have suffered an injury that is concrete and particularized enough
to establish the first element of standing.” Bova v. City of Medford, 564
F.3d 1093, 1096 (9th Cir. 2009) (quoting Texas v. United States, 523
U.S. 296, 300 (1998)). Because Navajo does not even allege any direct
impact on its interests from the guidelines themselves, its allegations
do not satisfy the requirement of concrete injury.
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b. Navajo does not allege actual or imminent injury.
The Supreme Court recently reiterated that “threatened injury
must be certainly impending to constitute injury-in-fact, and []
allegations of possible future injury are not sufficient.” Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013); see also, Lujan, 504
U.S. at 565, n.2 (“Although imminence is concededly a somewhat elastic
concept, it cannot be stretched beyond its purpose, which is to ensure
that the alleged injury is not too speculative for Article III purposes—
that the injury is certainly impending”). Navajo’s claim of future injury
depends on multiple contingencies. It would have to be determined–
while the guidelines remain in effect– that other sources are not
sufficient to supply the Navajo Reservation’s need for water. And
implementation of the guidelines would have to cause water users other
than Navajo to develop reliance that they otherwise would not have
developed on the use of surplus water supplies. And even if both of
these eventualities were to come to pass, no injury would occur unless
those other users’ reliance on surplus water supplies also caused harm
to Navajo’s ability to use the water in which it had established a
priority right. It is possible that none of these events will occur. Such
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possible future injuries are precisely what Clapper held insufficient to
establish standing
c. Navajo has not alleged injury “fairly traceable” to implementation of the challenged guidelines.
Nor does Navajo’s complaint allege injury “fairly traceable” to the
challenged action. “To satisfy the causality element for Article III
standing, Plaintiffs must show that the injury is causally linked or
“fairly traceable” to the Agencies’ alleged misconduct, and not the result
of misconduct of some third party not before the court.” Washington
Environmental Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013)
(citing Lujan, 504 U.S. at 560–61). Navajo asserts (Br. 26) that the
Bureau incorrectly stated in the FEIS for the shortage guidelines that
the impact from the guidelines would be favorable to tribal interests. It
contends that instead, the guidelines will allow “harmful management
practices” (Br. 26) to continue, because operations under the guidelines
will allow “reliance” by third parties to develop (Br. 27). In other words,
Navajo contends that because the guidelines allow development of
intentionally-created surplus supplies, third parties’ reliance on surplus
water supplies will increase, potentially interfering with Navajo’s
ability to develop any rights it may eventually secure in mainstream
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water. It leaves to speculation, however, why that would be true. The
Lower Basin has been fully utilizing its water supply from the
mainstream for many years, and the guidelines were expressly adopted
to reduce California’s reliance on surplus water from the mainstream.
There is accordingly no reason to conclude that the guidelines will cause
Navajo to encounter greater difficulty in attempting at some future time
to develop rights it may obtain in mainstream water.
And in any event, if and when Navajo can establish a Winters
right in the mainstream, it can make beneficial use of water in the
system for its Reservation as a senior water-right holder, regardless of
whether that water has been developed or relied upon by third parties
with junior priority dates. See FEIS at § 3.14 (“Tribes have the highest
priority water rights in the Colorado River”). As a result, there is no
reasonable probability that the guidelines will threaten Navajo’s
legally-protected interests in its Reservation and reserved water rights.
Accordingly, as the district court correctly concluded, even if the Bureau
had violated NEPA, Navajo has not alleged facts sufficient to establish
standing to challenge the guidelines.
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B. Navajo has not alleged injury-in-fact from the breach of a fiduciary duty.
Pervading Navajo’s allegations are assertions that the United
States’ trust relationship with the Navajo Nation requires that it “act
affirmatively” to protect Navajo’s trust resources (Complaint, ¶ 16); that
it has a “duty to ensure that the Navajo Reservation lands have
sufficient water” (id. ¶ 17A & C); and that the failure to take “all actions
necessary” to protect these unquantified resources constitutes a breach
of trust. (id. ¶ 19). As discussed above, Navajo therefore alleges that the
Secretary cannot lawfully implement River management measures
without first taking certain actions – including securing a
quantification or other determination of its reserved water rights – to
protect Navajo’s potential right to use water from the River. It
additionally alleges that such actions must be enjoined because they
constitute a breach of the United States’ purported fiduciary duties to
Navajo.
Absent any treaty, statute, or other substantive source of law
creating a trust duty to quantify Navajo’s water rights, Navajo has not
alleged injury “fairly traceable” to any breach of such a duty. The
Courts have recognized a ‘‘distinctive obligation of trust incumbent
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upon the Government in its dealings with [Indian tribes].’’ United
States v. Mitchell, 463 U.S. 206, 225 (1983) (quoting Seminole Nation v.
United States, 316 U.S. 286, 296 (1942)). “That alone, however, does not
impose a duty on the government to take action beyond complying with
generally applicable statutes and regulations.” Gros Ventre Tribe v.
United States, 469 F.3d 801, 810 (9th Cir. 2006) (citing Shoshone-
Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C.Cir.1995)) (‘‘[A]n
Indian tribe cannot force the government to take a specific action unless
a treaty, statute or agreement imposes, expressly or by implication, that
duty.’’); accord, Jicarilla Apache Tribe v. United States, 131 S. Ct. 2313,
2323 (2011) (though statutes denominate the relationship between the
Government and the Indians a “trust,” that trust is defined and
governed by statutes rather than the common law); United States v.
Navajo Nation, 537 U.S. 488, 506 (2003) (‘‘[T]he analysis must train on
specific rights-creating or duty-imposing statutory or regulatory
prescriptions’’); Shoshone Indian Tribe of Wind River Reservation, Wyo.
v. United States, 672 F.3d 1021, 1040 (Fed. Cir. 2012) (“when the Tribe
cannot identify a specific, applicable, trust-creating statute or
regulation that the Government violated, neither the Government’s
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control over Indian assets nor common-law trust principles matter”)
(internal quotation marks and citation omitted); Miccosukee Tribe of
Indians of Fla. v. United States, 980 F. Supp. 448, 461 (S.D.Fla.1997)
(‘‘[T]he government assumes no specific duties to Indian tribes beyond
those found in applicable statutes, regulations, treaties or other
agreements’’) (citing cases) aff’d, 163 F.3d 1359 (11th Cir.1998).
Thus, under this Court’s precedents, ‘‘unless there is a specific
duty that has been placed on the government with respect to Indians,
[the government’s general trust obligation] is discharged by [the
government’s] compliance with general regulations and statutes not
specifically aimed at protecting Indian tribes.’’ Gros Ventre Tribe, 469
F.3d at 810, quoting Morongo Band of Mission Indians v. FAA, 161 F.3d
569, 574 (9th Cir. 1998)); see also Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 479 (9th Cir. 2000), Skokomish Indian Tribe v.
FERC, 121 F.3d 1303, 1308–09 (9th Cir. 1997).
Navajo alleges that duties implied from the creation of its
Reservation require the United States to establish and quantify
Navajo’s water rights in the Lower Colorado River. But the treaties and
Executive Orders that created the Reservation contain no mention of
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any specific rights of the Navajo to the waters of the Lower Colorado.
See 15 Stat. 667. As discussed above, the United States has filed claims
and is participating as trustee for the benefit of the Navajo in the Little
Colorado River general stream adjudication. But here, Navajo has
identified no treaty, statute or other substantive source of law that
requires the United States to quantify or otherwise determine Navajo’s
unadjudicated water rights in the Lower Colorado River. Absent any
such express duty, Navajo cannot demonstrate the requisite injury-in-
fact based on allegations that the Secretary has failed to undertake
actions to quantify Navajo’s potential water rights, or to secure or
deliver water from the River to the Reservation.
C. Navajo’s claims are unripe.
For many of the same reasons that Navajo lacks a sufficiently
concrete, immediate stake in the implementation of the challenged
guidelines to establish standing, Navajo’s claims are not ripe. The
doctrines of standing and ripeness originate from the same Article III
limitation, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335
(2006), and in many cases – including this one – standing and ripeness
“boil down to the same question.” See, e.g., Susan B. Anthony List v.
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Dreihaus, 134 S. Ct. 2334, 2341 n.5 (2014); see also, Coons v. Lew, 762
F.3d 891, (9th Cir. 2014) (“[R]ipeness can be characterized as ‘standing
on a timeline,’ and the analysis for both standing and ripeness is
essentially the same.”) (quoting Thomas, 220 F.3d at 1138).
As discussed above, speculative allegations with respect to a
potential future difficulty in securing water rights that is “wholly
contingent upon the occurrence of unforeseeable events” are insufficient
to satisfy the constitutional prong of the ripeness doctrine. Coons, 762
F.3d at 898 (quoting Thomas, 220 F.3d at 1141). Moreover, the
challenged agency actions have no potential to cause direct injury to
Navajo’s Winters-based interests. Interior’s guidelines neither permit
nor forbid any action to allocate or use water contrary to Navajo’s
potential reserved water rights.
Navajo’s appeal thus presents an abstract challenge to the
agency’s Lower Colorado River management regime that is not fit for
judicial consideration. Navajo will suffer no hardship from withholding
review, because absent a concrete action by the Secretary causing water
to be allocated or used in a manner that interferes with Navajo’s use of
water reserved to it as a part of its Reservation, its interest in the
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Secretary’s regulatory regime has not been injured. See, e.g., Ohio
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). Navajo
may challenge any concrete action that harms its interests if and when
the Secretary takes such an action.
II. Even if Navajo’s claims are justiciable, they should be dismissed for lack of subject matter jurisdiction.
Even if Navajo can establish the requisites of a case or
controversy, it still must show that a cause of action exists for its
claims. A statutory cause of action is presumed to extend only to
plaintiffs whose interests “fall within the zone of interests protected by
the law invoked.” Allen v. Wright, 468 U.S. 737, 751 (1984). “[T]he
breadth of [that] zone * * * varies according to the provisions of law at
issue.” Bennett v. Spear, 520 U.S. 154, 163 (1997). Because Navajo has
not alleged injury within the zone of interests protected by NEPA, no
cause of action exists for its NEPA claims. And this Court has
previously concluded that no cause of action exists to challenge an
agency’s alleged breach of common-law trust. Accordingly, dismissal of
Navajo’s remaining claim must be affirmed for lack of subject matter
jurisdiction.
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A. NEPA does not provide a cause of action for Navajo’s claims
A plaintiff who challenges agency action on the ground that it
violates NEPA may not sue unless the interests he seeks to vindicate
are within the “zone of interests” protected by NEPA. Cantrell v. City of
Long Beach, 241 F.3d 674, 679 (9th Cir. 2001). Accordingly, because
NEPA was intended to protect the environment, the harm a NEPA
plaintiff asserts must “have a sufficiently close connection to the
physical environment.” Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 778 (1983). In contrast, “a plaintiff who asserts
purely economic injuries does not have standing to challenge an agency
action under NEPA.” Nev. Land Action Ass’n v. U.S. Forest Serv., 8
F.3d 713, 716 (9th Cir.1993).
Navajo asserts (Br. 30) that the Supreme Court’s recent decision
in Lexmark International v. Static Control, 134 S.Ct. 1377 (2014),
removed the “zone-of-interests” test from the standing inquiry and that
this Court therefore need not address it. That reading of Lexmark is
incorrect. At most, Lexmark stands for the proposition that a plaintiff
with Article III standing nonetheless may not pursue its claims unless
they fall within the zone of interests of the statute allegedly violated.
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Lexmark, 134 U.S. at 1385 (“whether a plaintiff comes within the zone
of interests requires the Court to determine, using traditional statutory-
interpretation tools, whether a legislatively conferred cause of action
encompasses a particular plaintiff’s claim”). In other words, even if
Navajo had Article III standing, it could pursue only a challenge for
which NEPA provides a cause of action.
Even assuming Navajo’s complaint presents a justiciable case or
controversy, therefore, its NEPA claims must be dismissed. Navajo
seeks to protect a potential claim to an unquantified amount of water
from the Lower Basin, and challenges the guidelines on the ground that
they may exacerbate Navajo’s difficulty in using its water right in the
Lower Colorado River, if and when it is able to establish such a right.
These unquantified and vague claims of interest do not have a
sufficiently close connection to the physical environment to fall within
NEPA’s zone of interests.
Navajo challenges the guidelines on the ground that they were
promulgated in violation of the procedural requirements of NEPA. But
it does not allege that the Bureau failed to evaluate any environmental
impact from implementation of the guidelines, or that management of
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the River under them will adversely affect environmental values.
Instead, Navajo alleges (ER 142-44; 2d Am. Comp. ¶¶ 66, 70, and 75)
that the FEISs for the guidelines stated that “the United States
examined all Indian water rights that could be affected by” the
challenged guidelines, although “the Navajo Nation’s Lower Basin
Colorado River water rights were omitted and the unmet needs of the
Navajo Nation and its members were not described.” It further alleges
(id. ¶ 83) that the Bureau’s River management regime “allows
entitlement holders other than the Navajo Nation to develop reliance
upon the use of such waters which are claimed by, reserved for, needed
by, and potentially belonging to the Navajo Nation.” These interests do
not have any connection to impacts on the physical environment, much
less a sufficiently close connection to fall within NEPA’s zone of
interests. Accordingly, even if Navajo’s complaint presented a
justiciable challenge the guidelines under NEPA – and it does not – this
Court must nonetheless affirm the district court’s dismissal of Navajo’s
NEPA claims for lack of subject matter jurisdiction, because Navajo has
failed to state a claim under NEPA.
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B. The district court properly dismissed Navajo’s breach-of-trust claim for lack of subject matter jurisdiction.
The district court dismissed Navajo’s claim that the United States
has breached fiduciary duties to assist the Navajo in securing a
determination of its Winters right on the ground that the United States
has not waived sovereign immunity to that claim (ER 15). Navajo
challenges that conclusion (Br. 32) on the ground that the APA, 5 U.S.C
§ 702, waives the United States’ immunity to all “claims with a cause of
action grounded in statutes, treaties, the Constitution, or the common
law, as well as claims premised on the APA.” Regardless of whether
section 702 waived the United States immunity here, however, the
district court correctly dismissed Navajo’s claim, which is
indistinguishable from the claim addressed by this Court in Gros
Ventre Tribe v. United States, 469 F.3d 801, 809-12 (2006).
Navajo asserts (Br. 33) that APA § 704, which defines “actions
reviewable” as “agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court,”
is not a limitation on the waiver of sovereign immunity in APA § 702. It
asserts that the district court therefore erred in dismissing the seventh
count of its complaint, which seeks declaratory and injunctive relief
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based on an alleged breach of a fiduciary duty. Navajo is incorrect.
Binding precedent in this Court holds that the APA waives the United
States’ immunity from challenges to agency decision-making only where
the “final agency action” requirement of § 704 is satisfied. And,
although this Court has held that the waiver may apply to certain
actions for nonmonetary relief based on improper agency action, it has
never held that the waiver applies to claims for common-law breach of
trust, as the district court correctly held.
1. This case is controlled by this Court’s precedent in Gros Ventre Tribe v. United States.
Navajo asserts (Br. 34) that APA § 702 waives the United States’
immunity from its claim based on the common law of trusts. Even if
Navajo were correct (and it is not) that the APA waives immunity from
its breach-of-trust claim, that claim nonetheless fails for lack of subject
matter jurisdiction, as this court recently held in rejecting a claim
indistinguishable from Navajo’s claim in this case. In Gros Ventre, this
Court held that the government’s general trust obligations must be
analyzed within the confines of generally applicable statutes and
regulations. It concluded that it need not resolve the question whether
the waiver of sovereign immunity in section 702 applied, because
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“[t]ribes cannot allege a common law cause of action for breach of trust
that is wholly separate from any statutorily granted right.” Gros Ventre
Tribe v. United States, 469 F.3d at 803. There is accordingly no
cognizable federal-law claim for breach of trust to enforce duties that
are not created by treaty, statute, or other substantive source of law. In
other words, to state a claim for breach of trust, Navajo must allege
that the Bureau has acted contrary to the requirements of a statute or
other substantive source of law that creates the duty that the United
States allegedly breached. Properly pled, therefore, its claim would be
subject to the requirement of final agency action. Here, however, Navajo
has not identified any source of law establishing either that it has
specific rights to water from the River or that the United States has a
duty to take specific actions regarding Navajo’s potential, but
unadjudicated, claims to the River. Accordingly, even if this Court were
to conclude that Navajo’s breach-of-trust claim is justiciable, it
nonetheless must affirm the dismissal of that claim on the alternative
ground of Navajo’s failure to state a claim on which relief may be
granted.
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2. The district court reasonably harmonized this Court’s conflicting precedents regarding the scope of the APA’s waiver of sovereign immunity
Navajo contends (Br. 32) that this Circuit’s precedents dictate that
section 702 has eliminated the defense of sovereign immunity for all
“claims with a cause of action grounded in statutes, treaties, the
Constitution, or the common law, as well as claims premised on the
APA.” That assertion is incorrect. This Court need not reach the
question whether Section 702 provides the requisite waiver of sovereign
immunity because, as explained above, Navajo has failed to identify a
statute or other source of substantive law that creates the duty
allegedly breached. But even if this Court were to address the question,
Navajo is incorrect that the APA provides the requisite waiver of
sovereign immunity.
As this Court observed in Gros Ventre, binding precedent in this
Court holds that the APA’s waiver of sovereign immunity is limited by 5
U.S.C. § 704, which limits judicial review to “[a]gency action made
reviewable by statute and final agency action for which there is no other
adequate remedy in a court.” Gallo Cattle Co v. Department of Agric.,
159 F.3d 1194, 1198 (9th Cir. 1998). But this Court has also held that
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the waiver is effective where a plaintiff seeks to enforce a constitutional
right and therefore is not dependent on the APA for a cause of action.
Presbyterian Church v. United States, 870 F.2d 518, 525 (9th Cir. 1989).
The district court’s dismissal is consistent Gallo Cattle, and is not
inconsistent with Presbyterian Church, and therefore must be affirmed.
The district court harmonized the two lines of authority,
concluding that the APA waives the Unites States’ sovereign immunity
from certain constitutional claims as well as from claims challenging
final agency action. And, although other courts have adopted the rule in
Presbyterian Church, Navajo has cited no authority holding that § 702
waives the United States’ immunity from common-law breach-of-trust
claims. This Court therefore should affirm the district court’s dismissal
in this case.4
4 In any event, this Court may not reverse on the grounds advanced by Navajo. In Gros Ventre, this Court concluded that the rulings in Gallo Cattle and Presbyterian Church cannot be distinguished. Gros Ventre, 469 F.3d at 807. A panel faced with such a conflict must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished. Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (en banc) (“The appropriate mechanism for resolving an irreconcilable conflict is an en banc decision”). A panel of this Court thus is not empowered to reverse on the ground that § 702 waives the United States’ immunity from a common-law breach-of-trust claim
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III. The district court did not abuse its discretion in denying Navajo’s post-judgment motion to amend its complaint.
The district court denied Navajo’s motion, filed under Rule
60(b)(6), for dismissal with leave to amend certain claims in its Second
Amended Complaint. Navajo contends that the district court abused its
discretion in denying the post-judgment motion, by applying the wrong
standard and by failing to apply the permissive principles of Rule
15(a)(2), Fed.R.Civ.P. Navajo’s arguments lack merit.
A. The district court’s decision may be reversed only for abuse of discretion.
Rule 60(b) provides that the court on motion may relieve a party
or a party’s legal representative from a final judgment, order, or
proceeding on “such terms as are just” for any of five enumerated
reasons, or “(6) [for] any other reason justifying relief from the
operation of the judgment.” A party may “not avail himself of the broad
‘any other reason’ clause of 60(b)” if his motion is based on grounds
specified in clause (1) “mistake, inadvertence, surprise or excusable
under Presbyterian Church, but must instead call sua sponte for en banc consideration to resolve the intracircuit conflict between Gallo Cattle and Presbyterian Church.
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neglect.” Rather, “extraordinary circumstances” are required to bring
the motion within the “other reason” language. Klapprott v. United
States, 335 U.S. 601, 613 (1949).
This court reviews a district court’s denial of a Rule 60(b) motion
for an abuse of discretion. Browder v. Director, Ill. Dept. of Corrections,
434 U.S. 257, 263 n. 7 (1978); Bateman v. U.S. Postal Serv., 231 F.3d
1220, 1223 (9th Cir. 2000). Under the abuse-of-discretion standard, a
reviewing court may not reverse unless it has a “definite and firm
conviction that the court below committed a clear error of judgment in
the conclusion it reached upon weighing of the relevant factors. A
district court may abuse its discretion if it does not apply the correct
law or if it rests its decision on a clearly erroneous finding of material
fact.” Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir.)
(quotations and citations omitted), cert. denied, 516 U.S. 914 (1995).
Rule 60(b)(6) relief should be used “sparingly as an equitable
remedy to prevent manifest injustice.” United States v. Washington, 98
F.3d 1159, 1163 (9th Cir. 1997). The rule cannot be used as a vehicle to
relitigate matters already litigated and decided by the court. Id. The
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district court here therefore reasonably denied Navajo’s post-judgment
motion for leave to amend its jurisdictional allegations.
B. The district court acted within its discretion in denying Navajo’s post-judgment motion.
Rule 60(b)(6) gives federal courts broad authority to grant relief
from a final judgment “upon such terms as are just,” provided that the
motion is made within a reasonable time. Liljeberg v. Health Serv.
Acquisition Corp. 486 U.S. 847, 863 (1988). Navajo points out (Br. 45)
that it filed its Rule 60 motion within 28 days of final judgment and
therefore could have filed a motion to alter or amend under Rule 59(e).
It asserts that the district court therefore abused its discretion by
applying the “extraordinary circumstances” standard for Rule 60(b)(6)
relief. But even assuming the district court was free to consider
Navajo’s motion under Rule 59(e), it was not an abuse of discretion for
the district court to apply the “extraordinary circumstances” standard
that applies to motions filed under the rule Navajo invoked.
Rule 60(b)(6) permits reopening for “any * * * reason that justifies
relief” other than the more specific reasons set out in Rule 60(b)(1)-(5).
Fed. R. Civ. P. 60(b)(6). The party seeking relief under Rule 60(b)(6)
must show “ ‘extraordinary circumstances’ justifying the reopening of a
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final judgment.” Wood v. Ryan, 759 F.3d 1117, 1120 (9th Cir. 2014).
Navajo is incorrect that the “extraordinary circumstances” test applies
only when a party seeks Rule 60(b) relief “because it waited too long to
obtain relief under another subsection.” Although the authorities on
which Navajo relies show that Rule 60(b)(6) relief may be sought for
claims that would otherwise be untimely requests for relief under other
subsections of Rule 60, the rule grants the district court broad
discretion to allow post-judgment relief for reasons other than those
provided by the more specific subsections, subject to a showing of
“extraordinary circumstances.” Accordingly, the timing of Navajo’s
motion did not eliminate the requirement to demonstrate
“extraordinary circumstances.”
Nor was it an abuse of discretion to deny the motion. Even under
the standard applicable to Rule 59(e), the district court properly denied
the motion. That standard, as articulated by this Court, is that
“amendments are appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an intervening change
in controlling law.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th
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Cir. 2008) (quoting Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th
Cir. 2003)) (internal quotation marks omitted). None of these
circumstances is present here, and the district court therefore did not
abuse its discretion, even if the motion had been filed under Rule 59(e).
Nor is there any basis for Navajo’s assertion that the district court
should have applied the liberal standard for permission to amend a
complaint found in Rule 15(a). In this case, the district court correctly
concluded that Navajo’s complaint did not allege facts sufficient to
establish standing with respect to its NEPA claims and that federal
court jurisdiction was lacking over its remaining claim as well. While
Navajo did not provide any indication as to the content of its proposed
third amended complaint, the district court reasonably could conclude
that amendment would be futile. Rule 15(a) “is to be applied liberally in
favor of amendment” and, in general, “‘leave shall be freely given when
justice so requires.’ ” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d
1149, 1160 (9th Cir.1989) (quoting Fed.R.Civ.P. 15(a)). But the law of
this Court is that “[l]eave need not be granted where the amendment of
the complaint would cause the opposing party undue prejudice, is
sought in bad faith, constitutes an exercise in futility, or creates undue
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delay.” Janicki Logging v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). And,
despite Rule 15(a)’s admonition that leave to amend should be “freely
given,” post-judgment motions to amend are treated with greater
skepticism than pre-judgment motions. Premo v. Martin, 19 F.3d 764,
772 (9th Cir. 1997) (citing Charles Alan Wright & Arthur Miller, 6
Federal Practice and Procedure § 1489 (1990)). Accordingly, after a
judgment has been issued, the conclusion that amendment will cause
undue delay is particularly justified. Premo, 19 F.3d at 772.
Amendment in these proceedings, where the district court has
already concluded that the injury alleged is insufficiently related to the
action challenged to provide a basis for federal court jurisdiction, is
likely to cause undue delay; and denial of the motion to amend therefore
was amply justified. See Janicki, 42 F.3d at 566. Navajo provided no
explanation why it could not have made a timely Rule 15(a) motion,
although it had twice previously amended its complaint since initiating
the litigation in 2003. The district court therefore clearly did not abuse
its discretion in denying Navajo’s Rule 60(b) motion.
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CONCLUSION
For the foregoing reasons, the district court’s judgment dismissing
Navajo’s complaint should be affirmed.
Respectfully submitted,
Of Counsel: ROBERT F. SNOW SCOTT BERGSTROM Office of the Solicitor U.S. Dept. of the Interior Washington, D.C. 20240
JOHN C. CRUDEN Assistant Attorney General
WILLIAM B. LAZARUS ELLEN J. DURKEE EDWARD J. GELDERMANN ELIZABETH ANN PETERSON Attorneys, Environment and Natural Resources Division. U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044 (202) 514-3888 [email protected]
March 2015 90-1-2-10927
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STATEMENT OF RELATED CASES
Counsel is unaware of any related cases pending in this court.
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of Fed. R.
App. P. 32(a)(5) and (6) because it has been prepared in 14-point Century, a
proportionally spaced font.
I further certify that this brief complies with the type-volume limitation
of Fed. R. App. P. 32(a)(7)(B) because it contains 12,301 words, excluding the
parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count
of Microsoft Word.
Respectfully submitted,
s/Elizabeth Ann Peterson
Attorney, Appellate Section U.S. Department of Justice
Environment & Natural Res. Div. P.O. Box 7415 Washington, D.C. 20044
(202) 514-3888 [email protected] March 16, 2015
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CERTIFICATE OF SERVICE
I hereby certify that on March 16, 2015, I electronically filed the
foregoing Answering Brief with the Clerk of Court for the United States
Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system. All participants in this appeal are registered CM/ECF users
and will be served by the appellate CM/ECF system.
s/Elizabeth Ann Peterson
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